Franczek P.C.

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On September 8, 2020, the United States District Court for the Southern District of New York struck down portions of a January 2020 Final Rule issued by the Department of Labor. The Final Rule provided a new test for determining whether an entity is a joint employer with another entity under the Fair Labor Standards Act (FLSA). The Final Rule, which became effective in March of 2020, severely limited the situations in which an entity can be considered a joint employer and held liable for violations of the FLSA in a “vertical” joint employment relationship. A vertical joint employment relationship…
Continue Reading DOL’s Joint Employer Test Ruled Illegal

While only a handful of cases have been reported related to districts’ provision of special education services remotely, we are watching carefully for lessons learned. So far, courts have not required in-person instruction as stay-put, but have indicated the importance of providing remote services tailored to student needs. These early cases reinforce our guidance to make individualized decisions to meet student needs in these extraordinary circumstances. Further, documenting these determinations in an individualized remote learning plan that is incorporated into the student’s IEP can help guard against both procedural and substantive challenges.

The first case comes from the District of…
Continue Reading Will Hearing Officers and Courts Order In-Person Instruction as Stay-Put?

Schools planning for students to return to campus in person this fall are confronting many significant challenges, including how to support students who may need physical restraint while also maintaining safe practices to minimize the risk of Coronavirus transmission. Schools and IEP teams should start planning to address this issue, such as considering whether additional PPE is needed, whether alternative behavior strategies and interventions could be effective, and whether other changes to the student’s  IEP, including placement, may be warranted to safely provide the student an appropriate education.
Additionally, staff need training to understand and comply with the new physical …
Continue Reading Key Elements of ISBE’s Permanent Rules on Isolated Time Out, Time Out, and Physical Restraint

ISBE and IDPH recently released their guidance related to Starting the 2020-21 School Year. The guidance addresses a broad range of topics, including some suggestions related to special education. The following week ISBE issued an FAQ targeting special education issues.  While many details remain to be worked out at the local level, here are our key takeaways related to placing a high priority on returning students with disabilities to in-person instruction, addressing the needs of medically fragile students, continued remote learning versus homebound instruction, face coverings, and the many demands and challenges facing IEP teams.

First, ISBE states that…
Continue Reading Planning for Return to In-Person Instruction: Special Education Considerations

On June 30, 2020, ISBE issued an FAQ document with the purpose of assisting school districts in the transition to in-person instruction. This document, which supplements ISBE’s general guidance on return to in-person instruction during Phase 4, does not include waivers or offer flexibility on existing rules. Rather, it summarizes past and current recommendations in a potpourri of categories including (1) ESY, (2) compensatory services, (3) evaluations, (4) class sizes, (5) homebound services, (6) health and safety factors, (7) IEP meetings/mediations/hearings, (8) delivery of special education instruction and related service, and (9) rules related to private special education schools. An…
Continue Reading Cheat Sheet for ISBE’s FAQ for Special Education on the Transition to In-Person Instruction

In Field Assistance Bulletin No. 2020-4, issued June 26, 2020, the United States Department of Labor, Wage and Hour Division, recognized a number of ways an employee can establish eligibility for Family First Coronavirus Response Act (FFCRA) leave based on the closure of a summer camp or program that the employee claims would have been the place of care for the employee’s child over the summer. In addition to proof of actual enrollment or application to a camp or program, if an employee’s child attended a camp or program in the summer of 2018 or 2019 and the child…
Continue Reading DOL Broadly Defines When a Summer Camp or Program is a Child’s Place of Care for FFCRA Leave

We recently let you know about a pending bill that would make changes to several special education procedures. Senate Bill 1569 has now been signed by Governor Pritzker as PA 101-0643. The law makes numerous changes related to remote learning. For purposes of special education, consider the following action steps to meet the new requirements:

  • Determine effective and efficient methods to inform parents that they can select how they want to receive draft documents prior to eligibility and IEP meetings and collect their responses. Options must include regular mail and picking up the documents at the school. Other

    • …
    Continue Reading Prepare for Special Education Procedural Changes Enacted in New Remote Learning Law

    Less than a year ago, Public Act 101-0515 sent Illinois special educators scrambling to comply with an array of new procedural requirements. Now, as if you aren’t dealing with enough challenges related to remote learning and preparing for the unknowns of next school year, Senate Bill 1569, which would make changes in each of the areas impacted by the original Act, just passed in the legislature. While some of the changes provide helpful clarification, others would bring new requirements of which schools need to be aware.
    Existing Law
     The original Act required schools to do the following:

    • Provide parents

    …
    Continue Reading New Bill Would Bring More Changes to Special Education Procedures

    I believe most would agree, the Department of Labor’s (DOL) interpretative guidance typically provides useful insight to employers navigating often tricky wage and hour laws. This was not the case with the DOL’s decades-old guidance regarding whether an employer was a “retail or service establishment” and could claim an overtime exemption for certain employees paid on commission under Section 7(i) of the Fair Labor Standards Act (FLSA). In its interpretative guidance, the DOL created lists of industries that were either not recognized as retail establishments, or could possibly be recognized as retail establishments. In an action that should be mostly…
    Continue Reading DOL Withdraws Industry Lists from its Retail or Service Establishment Exemption Interpretative Rule

    The U.S. Department of Labor (DOL) has issued a final rule under the Fair Labor Standards Act (FLSA) expressly authorizing employers to offer bonuses, hazard pay, and other premiums to employees whose hours, and regular rate of pay, vary from week to week.
    The final rule revises 29 CFR §778.114, which is the DOL regulation that specifies how overtime is to be computed for salaried, non-exempt employees who work a fluctuating workweek. The new rule clarifies that bonuses, premium payments, commissions, and hazard pay on top of fixed salaries are compatible with the fluctuating workweek method of compensation and that…
    Continue Reading DOL Green Lights Bonuses for Employees with Fluctuating Work Schedules

    Since the beginning of the COVID-19 pandemic, no formal flexibility has been granted to schools to deviate from State and federal special education requirements. However, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) gave the U.S. Secretary of Education Betsy DeVos the power to appeal to Congress if she believes that waivers should be made to provide flexibility regarding the Individuals with Disabilities Education Act (IDEA). Yesterday, Secretary DeVos made her recommendations to Congress, declining to seek significant flexibility for IDEA provisions. Secretary DeVos only requested limited waivers related to pre-k evaluations.

    In her report, the one area…
    Continue Reading Secretary DeVos Rejects Extensive Waivers to Special Education Requirements, Leaving Core of IDEA Intact

    Just as remote learning has become the new normal, we turn to planning for ESY and the 2020-21 school year. While the timeline for returning to school buildings remains uncertain, the eligibility of some students with disabilities for support over the summer remains clear. How should schools think about ESY eligibility this school year? We recommend starting with the same standards that have long governed ESY eligibility.
    Under IDEA, the IEP team determines whether a student needs special education and related services beyond the normal school year to receive a free appropriate public education (FAPE). ISBE guidance from 2001 reviews…
    Continue Reading “Extended School Year” When the Regular School Year Wasn’t Finished

    And so it begins. While we have encouraged schools to focus on meeting student needs during the school closure and planning to meet student needs when we return to school buildings, we knew the temptation to jump ahead to compensatory education questions would be strong. Guidance documents from the U.S. Department of Education and ISBE have contributed to such concerns by stating that IEP teams will need to make individual compensatory education determinations for students when school resumes. Now, a putative class action lawsuit has been filed in Hawaii. The suit alleges that Hawaii denied students FAPE by failing to…
    Continue Reading Hawaii Comp Ed Class Action: Don’t Panic. Plan.

    In a previous post, we forecasted further guidance from ISBE and the U.S. Department of Education to provide additional clarity for schools in regard to how to best serve students with disabilities during school closures as a result of the COVID-19 pandemic. Yesterday, ISBE posted an updated FAQ regarding providing special education during remote learning as Illinois schools remain closed for the remainder of the 2019-2020 school year. The 17-page document reviews current requirements, repeating that federal and State law requirements related to students with disabilities are still in effect despite the suspension of in-person instruction. The FAQ tracks closely…
    Continue Reading ISBE Issues FAQ Regarding Special Education During Remote Learning

    Last fall, in response to serious concerns raised about the use of isolated time out and physical restraint in schools, ISBE issued emergency rules to limit the use of those behavior management techniques. Emergency rules are effective for up to 150 days or until permanent rules are approved, and these emergency rules were due to expire on April 17, 2020.  On April 9, ISBE and JCAR (the bipartisan legislative oversight committee responsible for reviewing and approving agency rulemaking) passed permanent rules regarding isolated time out, time out, and physical restraint. The new rules allow the use of isolated time out…
    Continue Reading ISBE Adopts Permanent Rules on Isolated Time Out, Time Out, and Physical Restraint

    After three weeks of being out of school buildings and one week of remote learning, we can all see that the IDEA was not written for pandemics and widespread school closures. While requests for IDEA flexibility have been made, the Department of Education has not indicated whether or when such requests might be granted. Federal and State guidance has been provided but continues to evolve. Educators, administrators, parents, attorneys, states, and the Department of Education are all improvising. In these uncertain times, we recommend schools go back to basics: individualize, communicate, document, and be reasonable. Remember that the FAPE standard…
    Continue Reading Special Education and Remote Learning: Back to Basics